CSL2601 EXAM PREP
OCTOBER NOVEMBER
2022/2023
1
CSL2601 Constitutional Law
Exam memo
1 Explain what is meant by constitutional law? (3)
Constitutional law is the aggregate (sum total) of binding rules relating to the distribution
and exercise of state authority. The rules of constitutional...
1 Explain what is meant by constitutional law? (3)
Constitutional law is the aggregate (sum total) of binding rules relating to the distribution
and exercise of state authority. The rules of constitutional law define the relationship
between the organs of state inter see (between themselves), and between the organs of
state and individuals
2 Distinguish between public and private law, state why constitutional law is (5)
said to be part of public law
Public law is the branch of law which regulates the exercise of state authority in
relationships of inequality.
Private law, in contrast, governs the relationships between people who are on an equal
footing. Constitutional law forms part of public law as it regulates public interest which
comes into play in legal relationships of subordination, either between administrative
authorities themselves or between administrative authorities and private individuals.
3 “The distinction between private and public law has become blurred in
modern times”. Discuss this statement with particular reference to the reasons
why this blurring has occurred. (6)
The reason why the distinction between public and private law has become blurred is that
the modern state has become very involved in private law relationships, such as the
relationship between employee and employer. The new constitution expressly provides
for relationships between private individuals in the Bill of Rights. It also authorizes
parliament to enact legislation to prohibit unfair discrimination by private persons and
companies. Finally traditional public functions such as public transport or
telecommunications are being privatized and being run by semi-public corporations or
private contractors.
4 Discuss the sources of constitutional law. (10)
The five sources of constitutional law are:
The constitution, which means the entire body of rules governing the exercise of
state authority in a particular state as well as the relationship between the citizens
of the state and the organs of the state. May also refer to a written document
which contains some or most of the constitutional rules.
Legislation or Statute. It is expressly left to legislator to add the flesh to the basic
framework of the constitution.
Common law. English common law played an important role in the history of
South African law and must therefore be taken into account. S39(2) of the
, 2
Constitution requires that the courts develop the common law to bring it in line
with the constitutional precepts.
Case law (stare decisis). Past judgments are binding and Illustrates the practical
application of the constitutional principles, rules and values and tells you how a
particular case alters or contributes to the development of the law.
International law. Section 39(1) of the Constitution makes it compulsory for a
court to
consider international law in the determination of constitutional issues.
Other sources of constitutional law
a. Academic writings-Courts refer to academic opinions expressed in books and
articles in journals.
b. policy documents - Current government policies expressed in green papers,
white papers and other documents issued by the organs of state help to shape
the legislative agenda; these are often translated into legal norms.
c. reports by state institution supporting constitutional democracy eg. public
protector, Auditor General)
d. foreign Law - 39(1)(c) of the Constitution provides that the courts may
consider foreign law, that is, especially case law from other. A discretionary
power to consider the laws of other countries where there is insufficient
guidance available from South African sources.
Is a supreme constitution and an inflexible constitution the same thing? Give
reasons for your answer. (5)
5 Distinguish an inflexible constitution from a flexible one and mention an
example of each. (6)
A flexible constitution has the same status as ordinary laws of the land and has no special
procedures for amendment. An example would be the 1961 constitution of South Africa.
An inflexible constitution usually enjoys a superior status to ordinary laws of the land and
requires a special amendment procedure. Eg. two-thirds majority vote. An example is the
1996 constitution of South Africa.
6 Does South Africa have a flexible or inflexible constitution? Why? (3)
South Africa has an inflexible constitution as it enjoys superior status to the ordinary laws
of the land and its amendment provided for in s74(1) – (3) requires special procedures
and special majorities. S1(c) states that one of the values South Africa is founded upon is
the „supremacy of the constitution and the rule of law‟.
(a) Are the following statements true or false? Give reasons for your answer.
(i) An inflexible constitution enjoys the same status as the other laws of the
country and does not require any special procedures for its amendment. (5)
False.
, 3
1. It enjoys a higher status than the ordinary laws of the land.
2. It requires special procedures and majorities for amendment.
3. This makes it harder for the majority to effect amendments to the Constitution for self
serving purposes.
4. Example: the South African Constitution of 1996.
7 Distinguish between a supreme constitution and one that is not supreme. Give
an example of each. (5)
A supreme constitution ranks above all other laws of the state and is usually but not
always inflexible. Any law which is inconsistent with it will be declared invalid (referred
to as the Grundnorm, against which all other legislation is tested for validity).An example
of a supreme constitution is the 1996 constitution of South Africa.
On the other hand a constitution that is not supreme does not enjoy any special status to
other laws in the land and the government can declare laws which conflict with the basic
principles of the constitution. An example of a constitution that is not supreme is Britain.
8 Explain why South Africa has a supreme constitution. (3)
The South African constitution is supreme because S 1(c) lists the supremacy of the
constitution as a founding value. Section 2 states that the constitution is the supreme law
of the republic. Section 172(1)(a) requires the courts to declare any law that is not
consistent with the constitution invalid in terms of its inconsistency.
9 Explain the difference between autochthonous and allochthonous (5)
constitutions.
Autochthonous constitutions are said to be indigenous as opposed to borrowed.
Reactive constitutions which aim to resolve specific issues of the past are indigenous. Eg
South Africa There are also constitutions which maintain continuity with established
norms and tradition which are also indigenous. Eg. Netherlands
Finally there are superimposed constitutions whose contents are largely unrelated to the
history of the country; this is an example of an allochthonous constitution eg Zimbabwe.
It is often difficult to find an example of a constitution that fits distinctly into either
category. For instance the 1996 constitution of South Africa is considered to be an
indigenous constitution as it was drafted in the light of South Africa‟s history, but at the
same time borrowed on the experience of other countries and was influenced by
international law.
Distinguish between autochthonous and allochthonous constitutions. Give an
example of each. (5)
Autochthonous constitution
Refers to indigenous or home grown constitutions.
This means that the constitution is a result of context
(political/economic/social/historical). An example would be the 1996 Constitution or the
German Constitution.
Allochthonous constitution
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